On Monday, Representative Andre Cushing, Respect Maine PAC, and Harold Clough filed an appeal in federal court challenging the constitutionality of Maine’s public funding scheme for state candidates.

The Maine Clean Elections Act, passed in 1995, provides taxpayer funding for Maine legislative and gubernatorial candidates who agree to limit how much money they raise and spend on their campaigns. Under the scheme, state legislative candidates receive between $500 and $19,000 in initial funding, plus additional “matching funds” of up to $38,000 if they are outspent by their opponent and independent groups.

One of the plaintiffs in the case, Rep. Andre Cushing, is state representative for District 39 of the Maine legislature, and is currently running for re-election in 2010. Rep. Cushing hasn’t taken public funding for his campaign. Yet because he has raised more than $4,656 for his campaign, every additional dollar he raises will result in an equal taxpayer funded contribution to his opponent.

Plaintiffs brought suit in August challenging the constitutionality of the matching fund. Last Friday Judge George Singal denied the plaintiffs’ motion to stop the use of matching funds during the 2010 election, saying that he was bound by a prior case upholding the system.

Plaintiffs are confident that they can receive a favorable decision on their appeal prior to the November election. “Just in the last few months federal courts have halted the use of matching funds in Arizona, Connecticut, and Florida,” said James Bopp, Jr., counsel for the plaintiffs. “Under this system, simply running an ad against a candidate can result in that candidate getting more taxpayer money. Candidates who don’t use taxpayer funding for their own elections shouldn’t be required to effectively fund their opponents.”

The case was brought with assistance from attorneys for the Maine Heritage Policy Center, which is serving as local counsel. “All we are asking is for Maine to respect the First Amendment rights of candidates,” said Tarren Bragdon, CEO for MHPC. “Maine can choose to have public funding for elections if it wants to. But it cannot penalize protected political activity by giving additional funding to a candidate’s opponent based on his campaign speech.”

James Bopp, Jr. has a national federal and state election law practice. He is General Counsel for the James Madison Center for Free Speech and former Co-Chairman of the Election Law Subcommittee of the Federalist Society.
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